in London or Westminster or suburbs thereof. Later, no more than
200 pounds of gunpowder were allowed to be kept therein for more
than 24 hours. Buildings may be searched on "reasonable cause"
shown to a Justice of the Peace. Later, no more than 400 pounds of
gunpowder could be kept for more than 24 hours near any town, or
more than 300 pounds for more than 24 hours in any place. Then no
gunpowder could be conveyed by land over 25 barrels or by water
over 200 barrels.
It was customary for officers to take the oaths of allegiance and
supremacy to any new monarch. When George I became king in 1714,
all civil and military officers, clergy, schoolmasters, and
lawyers, solicitors, clerks, etc. living within 30 miles of London
had to take an oath of allegiance and a new oath that the person
was not Papist and agreed that no foreigners had jurisdiction in
the realm, such as to excommunicate someone and thus declaring he
could be legitimately killed. Soon after, it was required that
Papists had to register their names and real estates.
Commissioners were appointed to make inquiries. If a person did
not take the oaths or did not register, he was to forfeit 2/3 of
his land to the king and 1/3 to a Protestant who sued for such.
This was in order to deter future rebellions against the king and
efforts to destroy the Protestant religion.
Papists enlisting in the army are liable to corporal punishment,
but not death, as determined by a court martial.
Any mayor, bailiff, or other magistrate who is present at any
meeting for public worship other than the Church of England will
lose office and is barred from any public office or employment.
As late as 1722, there was a Papist conspiracy to take the Tower
of London and the King, and make a Catholic king. This resulted in
the imprisonment of the conspirators and a new statute: Persons
not taking the oath of allegiance and above oath that they were
not Papist shall register their lands and yearly rents and pay
double the land tax and 100,000 pounds. After payment, they are
discharged from forfeiting 2/3 of their lands' rents for one year.
Jews may not refuse suitable maintenance to their children who are
Christian to pressure them to convert back to Judaism.
In 1712 was the last execution for witchcraft. By statute of 1736,
witchcraft, sorcery, enchantment, and conjuration were abolished
as crimes.
Black slaves were common for a time in London. This was a result
of the voluminous triangle trade of manufactured goods from
England, slaves from West Africa, and sugar and tobacco from the
West Indies. Slavery was largely abolished by judicial decision of
Chief Justice Mansfield in 1772.
If a sheriff does not answer for money collected for the
Exchequer, he shall forfeit treble damages to the aggrieved
person, double the sum missing to the aggrieved person, 100 pounds
to the king, and 100 pounds to the party who sues. If a sheriff
take a fee for levying or collecting money due to the king (except
4d. for an acquittance) or take a sum for not levying money due,
he is guilty of extortion, injustice, and oppression and shall
forfeit treble damages and costs to the aggrieved person, and
double the sum extorted to the aggrieved person. A sheriff may not
levy more than 12d. for every 20s. of yearly income of any manor
for up to 100 pounds of income, and 6d. for value over 100 pounds.
No one may cut pine trees that are fit for masts of ship in New
England without license by the Queen or forfeit 100 pounds. Later,
pine trees on private property were excluded.
Citizens of Great Britain may sue colonial debtors by oath before
British magistrates and a debtor's colonial lands and houses and
negroes may be used to satisfy his debts.
Anyone pretending to act under a charter and taking subscriptions
in Great Britain or the colonies must forfeit treble damages.
No hats, including beaver hats, may be exported from any colony
even to another colony because this has hurt British hat
manufacture. The penalty is 500 pounds. No one in the colonies
except present hatmakers who are householders and journeymen may
make hats unless they serve a seven year apprenticeship. No
hatmaker in the colonies may have more than two apprentices at
once.
Whaling ships near Greenland were prohibited from returning until
their hulls were full. Vessels built or fitted out in America may
engage in whaling.
Pig iron from the colonies may be imported free, but there may be
no mill for slitting or rolling iron and no plateing-forge or
other engine to work with a tilt hammer and no furnace for making
steel erected or used in the colonies or forfeit 200 pounds.
No paper bills of credit may be used in New England because such
have depreciated.
William Blackstone lectured on law at Oxford University in 1753.
As a result, the first professorship of English law was
established. His lectures were published in 1769 as the
"Commentaries on the Laws of England". They greatly influenced the
American colonists and were the basis of legal education in
England and America for years. They were comprehensive and covered
real property, crime and punishment, court procedure, contract,
corporations, and commercial law. He wrote "The Great Charter and
Charter of the Forest" in 1759.
- Judicial Procedure -
For actions under 10 pounds in a superior court and actions under
40s. in an inferior court, the offender shall be served with
process to appear in court rather than being arrested. For money
at issue, an affidavit shall be taken. No more money may be taken
for bail than the amount at controversy. This is to prevent
frivolous and vexatious arrests. Perjurers, forgers, those
involved in barratry or suborning perjury, and pretenders
practicing as attorneys or solicitors in the courts of law or
equity shall be transported for seven years to the American
colonies. Unqualified people acting as attorneys or solicitors in
the county court shall forfeit 20 pounds.
No one may practice as an attorney in the courts of King's Bench,
Common Pleas, or Exchequer until he has been examined by a judge
of such court on his fitness and qualifications and has taken the
oath to honestly demean himself and practice according to his best
knowledge and ability. The same applies to a solicitor in the
equity courts. This shall not exclude persons who have been bound
to an attorney or solicitor for four years. Attorneys and
solicitors, with consent of an attorney of another court, may
participate in proceedings of such other court. No attorney may
have more than two clerks bound to him at one time. Attorneys may
be admitted as solicitors and vice-versa.
There were twelve common law justices of the Court of the King's
Bench, Court of Common Pleas, and Court of the Exchequer. The
Chief Justices of all of these courts were paid partly from fees
paid to the court. The other Justices of these courts were paid
completely by salary, which in 1759 was well over 500 pounds per
year. These justices were to continue in office even after a king
died and could be removed only for good cause upon the address of
both houses of Parliament. The officers of these courts were
attorneys. There was one justice at Doctors' Commons. The two
chancery justices (since Edward I) were the Lord Chancellor and
the Master of the Rolls. The salary of the eleven masters of the
court of chancery in 1765 was 400 pounds per year. The officers of
this court were solicitors.
Appeals from the Exchequer could be made to a court of the King's
Bench and Common Pleas combined. Appeals from Common Pleas could
be made to the King's Bench. Decisions of the King's Bench and
other common law courts could be appealed to Parliament.
The common law courts rode circuit twice a year in five circuits
and once a year in the north circuit. So an accused person could
spend up to a year in gaol waiting for trial. Few prisoners were
granted bail. In each common law court, the law justices in banc
would hear demurrers [contentions that the other party was wrong
in the law]. No one with an interest in a suit, including the
plaintiff and the defendant, could give evidence. There was no
power to amend pleadings, so misspelling of the defendant's name,
for instance, could result in dismissal of the suit. In 1730, the
pleadings and indictments ceased to be in Latin. Compurgation
still existed for debt and detinue.
Writs of error at variance from the original record or otherwise
defective may be amended to correct the defect by the court where
such writ is returnable. No judgment is to be reversed for any
defect in any bill or writ, excepting an appeal of felony or
murder, or misdemeanor. This is to prevent delays of justice.
Justices of the Peace may correct defects of form on appeals to
them.
Plaintiffs neglecting to go to trial after an issue has been
joined may be nonsuited.
The qualification for jury service is having land with an income
over rents of at least 20 pounds, with leases for 500 years or
more, or 99 years, or any term determinable on one or more lives.
Being a freeholder is not necessary. In London, the qualification
is being a householder and having lands to the value of 100
pounds. No sheriff may excuse a qualified person from jury service
for money or other reward. Selection of jurors for each case is to
be done by some indifferent person pulling their names from a box.
Later, persons refusing jury service could be fined.
Poor persons may be paid up to 6d. to give evidence against
felons.
Pirates may not be tried again for the same crime or for a certain
crime and high treason. When the marine force was raised, the
marines were also given protection from double jeopardy.
In Chancery, a plaintiff filed a complaint and interrogatories
prepared by counsel. Only in Chancery could there be discovery.
The interrogatories were addressed by court officials to witnesses
without the presence of the parties or their lawyers. Officials
wrote down the answers in their own terms. So there was no cross-
examination possible. Most decrees took many years to be made.
The ordinary administrative court of first instance is that of one
or two Justices of the Peace who issue orders in matters of public
safety, public order, public morals, health, the poor, highways,
water, fields, forests, fisheries, trade, building, fire, begging,
and vagrancy. He examined suspicious persons and issued warrants
for the removal of persons likely to become a public charge. The
Justice of the Peace also regulates wages, servants, apprentices,
and day laborers. In his judicial capacity, he tried all crimes
and felonies except treason, though in practice death penalty
cases were transferred to the assize justices. The Justices of the
Peace of a hundred hold special sessions such as for appointment
of parochial officers, highway disputes, and the grant of wine,
beer, and spirit licenses. The appointment of overseers of the
poor, authorization of parish rates, and reading of the Riot Act
to mobs to disperse them, required more than one of the Justices
of the Peace of the hundred to participate. All the Justices of
the Peace of the county met four times a year at Quarter Sessions
to hear appeals from penal sentences, to determine the county rate
of tax, to appoint treasurers of the county and governors of the
county prison and house of correction, to issue regulations on
prices of provisions and on wages, to settle fees of the county
officials, to grant licenses for powder-mills and other
industries, to hear nuisance complaints such as those against
parishes for failing to keep their roads in repair, to make
regulations for the holding of markets, to hear complaints
concerning local government, and to register dissenting chapels.
In more and more matters specified by statute, the Quarter
Sessions heard appeals from the orders of the individual Justices
of the Peace instead of common law courts hearing them by writ of
certiorari. The writ of certiorari allows administrative decisions
to be reviewed by the common law courts for compliance with law,
competency of the court, and interpretation of the administrative
law. The writ of habeas corpus appealed administrative decisions
to imprison not only after arrest for criminal proceedings, but
any coercive measure for enforcing an administrative order. The
writ of mandamus was available for enforcing the injunctions of
administrative law against towns, corporations, and all other
authorities and private persons, where the ordinary punishments
were insufficient. Justices of the Peace in rural areas were
squires and in towns aldermen.
In 1747, Justices of the Peace were authorized to decide issues
between masters and mistresses and their employees who were hired
for at least one year. If a servant misbehaved, they could
authorize reduction of wage, discharge, and hard labor at a house
of Correction up to one month. If a servant was not paid, he could
authorize payment of wages up to 10 pounds for an agricultural
servant, and up to 5 pounds for an artificer, handicraftsman,
miner, collier, keelman, pitman, glassman, potter, or ordinary
laborer. Later, tinners and miners were added to the last
category. In 1758, employees of less than a year were included.
In 1775, Justices of the Peace were authorized to administer any
oath for the purpose of levying penalties.
To be a Justice of the Peace, one must have income of 100 pounds a
year from a freehold, copyhold, or customary estate that is for
life or for a term of at least 21 years, or be entitled to a
reversion of lands leased for 1 or 2 or 3 lives, or for any term
of years determinable on the death of 1 or 2 or 3 lives. Excepted
were peers, justices, and heads of colleges or vice chancellors at
the universities. The Justices of the Peace were selected by the
superintending Sheriffs and Lords Lieutenant, the latter of whom
were usually peer with a ministers' office or a high court
official. No attorney or solicitor or proctor could be a Justice
of the Peace unless the locality had Justices of the Peace by
charter.
A request for Certiorari for removal of convictions, judgments,
orders made by Justices of the Peace must be made within six
months and after notice to the Justice of the Peace who may argue
cause against granting certiorari.
In the common law courts, trespass in ejectment served the
purposes of most of the actions involving land. Assumpsit covered
the whole province of debt, and much more. Trover more than
covered the old province of detinue. Trespass still served for all
cases in which the defendant had been guilty of directly applying
force to the plaintiff's body, goods or chattels. Trespass on the
case covered miscellaneous torts. Replevin was still used.
Covenant remained in use for the enforcement of promises under
seal. Account gradually came under the equity jurisdiction of
Chancery. Common law writs of dower are largely superseded by the
relief given to the doweress in the courts of equity, where new
and valuable rights were given to her and to her personal
representatives against the heir and his representatives. The
actions of indebitatus assumpsit is being extended to actions upon
quasi-contract, in which the element of contract is not required
e.g. quantum meruit, where a contract is implied from the facts of
the case.
Mercantile law was developed by the common law courts, especially
the King's Bench.
The king was to appoint the marshal of the King's Bench. The
marshal was to select his inferior officers to hold office as long
as they "behave themselves well within". These offices had been
sold by James I to a certain person, his heirs, and assigns. The
marshal was to keep the prison of this court in good repair from
his fees and profits of office.
The office of sheriff was now an accessory department of the
common law courts for summons, executions, summoning the jury, and
carrying out the sentence of the law.
Summons for excise offenses may be left at a person's abode,
workhouse, or shop as well as on his person.
The coroner's office now investigated unusual deaths with a jury
from the neighborhood elected by county freeholders.
The last beheading was of a Scottish lord in 1747; he had been
involved in an attempt to restore the Stuarts to the throne. So
many people came that some overcrowded bleachers fell down and
crushed about 20 spectators. Henceforth, every sentence of death
was by hanging, even for peers.
In 1772, the process of pressing a man to death, if he refused to
plead to an indictment was abolished. In 1772, persons accused or
indicted, in Great Britain or America, of felony or piracy who
stand mute shall be convicted of such charge. Property of a felon
was still forfeited to the crown.
From 1749 on were established special procedures for speedy
decisions in local courts in some areas for debts or damages under
40s. and imprisonment for such was limited for up to three months.
Otherwise, sentences were longer, and debts grew during the time
in prison. When prisons were overcrowded, Parliament let the
inmates out if they gave up their possessions. They could go to
Georgia.
In 1763, the homes of John Wilkes and others were searched for a
seditious and treasonous published paper and all related papers
because they had been rumored to have some relationship to the
conception, writing, publication, or distribution of the paper.
Wilkes had such papers and was convicted of libel. He countersued
for damages due to criminal trespass. The court held that general
search warrants were subversive of the liberty of the subject of
the search in violation of the British Constitution, declared the
statute void, and found for Wilkes. The Court of Common Pleas
agreed on appeal and put the burden of proof on the persons
searching to justify the search warrant. His decision gave support
to William Pitt's assertion that "every man's home is his castle".
There were felons' prisons and debtors' prisons. Sometimes they
were one and the same. There was much fighting among inmates. The
inmates slept on hay if lucky. There were no washing facilities
and little light. Counties or friends paid for their bread. They
were also sold beer, which made them drunk and riotous. The sale
of beer was a recognized and legitimate source of profit to the
keeper. This was remedied by statute of 1760 that no sheriff or
other officer may take an arrested person to a tavern or other
public house or charge him for any wine, beer, ale, victuals,
tobacco or other liquor without his consent and shall allow
prisoners to be brought beer, ale, victuals, bedding, and linen as
the prisoner sees fit. Sheriffs often kept people imprisoned
unless and until they paid all their fees due to the sheriff. In
1772 was founded the Society for the Discharge and Relief of
Persons Imprisoned for Small Debts for those inmates unfortunate
instead of fraudulent or extravagant. Legacies were often made to
debtors. There was much Gaol Distemper fever with fatal
consequences. When John Howard, a grocer who had inherited wealth,
but poor health, became a sheriff, he visited many gaols. When he
saw the squalid conditions there, he advocated hygenic practices.
In 1774, Justices of the Peace were authorized to order walls and
ceilings of gaols to be scraped and washed, ventilators for
supplies of fresh air, a separate room for the sick prisoners,
commodious bathing tubs, provision of clothes for prisoners,
keeping of prisoners not below the ground, and apothecaries at a
stated salary to attend and to report the state of health of
prisoners.
In 1773, clergymen were employed in gaols to alleviate the
distress of prisoners and to contribute to morality and religion.
Also, no longer may any fees be taken by gaol keepers or sheriffs
because persons not indicted or found not guilty have been kept in
prison pending payment of such fees. Instead, the counties shall
pay to gaol keepers up to 13s.4d. per prisoner so discharged.
There was much Gaol Distemper fever with fatal consequences, so in
1774, Justices of the Peace were authorized to order walls and
ceilings of gaols to be scraped and washed, ventilators for
supplies of fresh air, a separate room for the sick prisoners,
commodious bathing tubs, provision of clothes for prisoners,
keeping of prisoners not below the ground, and apothecaries at a
stated salary to attend and to report the state of health of
prisoners.
Colonials acts which infringed upon the English common or
statutory law, or were against the interests of other American
colonies were submitted to the Privy Council, which allowed or
disallowed them. Appeals from the colonial courts came to the
Privy Council.
Judges in the colonies were appointed by royal governors and paid
by colonial legislatures. They served at the pleasure of the king.
Colonial courts included superior courts of judicature, courts of
assize, general gaol delivery, general sessions of the peace,
inferior court of common pleas, and commissions of Oyer and
Terminer. There were also Justices of the Peace, marshals,
provosts, and attorney generals. There were few cases of vagrancy,
theft, or homicide. This may have been because the people were few
and dependent on each other, and economic opportunities were
great.
In 1735 John Peter Zenger, printer of the New York Weekly Journal,
was tried for seditious libel for its criticisms and satire of the
New York governor, who exceeded his powers, such as by demanding
that bills from the assembly be presented to him before the
council, and by arbitrarily displacing judges. Seditious libel was
defined as "false, scandalous, and seditious" writings.
Traditionally, this word "false" could mean "disloyal". The
prosecution argued that truth of such criticism was an aggravation
of the crime because it was more provoking of sedition, as found
by Star Chamber cases. The defense argued for a right publically
to remonstrate abuses of power by public officials to guard
against violence and destruction of liberties by men in authority.
The American jurors, who were supposed to be familiar with the
facts pertinent to the case, knew the truth of the paper's
criticisms. They agreed with the defense that the word "false" in
the definition: "false, scandalous, and seditious" writings, to
mean "untrue" instead of "disloyal". So truth became a defense to
seditious libel. Pamphletts describing the Zenger trial and
acquittal were published and republished in London and the
colonies.
Benefit of clergy was available in the American colonies to all
who could read and write. It could be used in trials for
manslaughter.
- - - Chapter 19: Epilogue - - -